Federal court OKs gender-reassignment surgery for murderer

Lisa Bul / Associated Press

Michelle Kosilek, who was born as Robert, lives as a woman in a Massachusetts prison, serving a life sentence for murder. A federal appeals court has upheld a judge's ruling granting a taxpayer-funded operation that would help Kosilek complete the transition.

Michelle Kosilek, who was born as Robert, lives as a woman in a Massachusetts prison, serving a life sentence for murder. A federal appeals court has upheld a judge's ruling granting a taxpayer-funded operation that would help Kosilek complete the transition. (Lisa Bul / Associated Press)

Matt Pearce

A federal appeals court has ruled that a convicted murderer in Massachusetts can get a gender-reassignment surgery while in prison.

In 1990, Michelle Kosilek -- who was born physically male, and who at that point still identified as Robert -- murdered her wife, Cheryl McCaul, a drug counselor at a volunteer treatment facility.

Kosilek was later convicted and sentenced to life in a medium-security prison for men. She legally changed her name, began receiving hormone treatment and began identifying as a woman, and has remained in the prison. According to court records, Kosilek, now 64, has believed from birth that she was a woman "cruelly trapped in a man's body."

The appeals court ruling, issued Friday, follows years of litigation that began in 1992, when Kosilek asked that the state provide an operation to help complete her transition.

Since then, prison officials resisted granting her the procedure while she was behind bars. A federal judge ruled in 2012 that refusing to do so violated Kosilek's 8th Amendment rights against cruel and unusual punishment.

While originally awaiting trial in the early 1990s, Kosilek twice attempted suicide and attempted self-castration, according to court records.

A three-judge panel from the 1st Circuit Court of Appeals in Boston upheld the federal judge's ruling 2 to 1, holding that it wasn't enough for prison officials to provide some counseling and hormone therapy for Kosilek.

"As the district court found, there is a difference between treating the underlying disorder and only treating only its symptoms," the court wrote in its majority opinion.

"Receiving medical treatment is one of those rights" afforded to prisoners by the Constitution, the appeals court added, "even if that treatment strikes some as odd or unorthodox."

The court also noted that there was no evidence that the Massachusetts Department of Corrections withheld the gender-reassignment surgery because it was too expensive to the state. Such procedures have often come under public criticism for being funded by taxpayers.

According an American Civil Liberties Unionfact sheet, transgender-related healthcare is frequently denied to transgender inmates in state prisons, and prisoners are frequently assigned to the facilities that correspond with their genitalia.

In 2009, research showed that transgender inmates were 13 times more likely to get sexually victimized in prison. One study said that 59% of inmates classified as having "gender identity disorder" in California prisons had been sexually assaulted.

Some inmates have successfully challenged some state prisons that have resisted providing hormone therapy or surgeries for transgender inmates. The inmates and advocates have argued that denying such care violated the inmates' 8th Amendment rights, according to the ACLU, which filed a brief in support of Kosilek's case.

Jennifer Levi, director of the Gay & Lesbian Advocates & Defenders Transgender Rights Project, had also filed a brief in support of Kosilek's case, and hailed Friday's ruling.

"If she needed treatment for cancer or heart disease, this case would never have wound up in court," Levi said in a statement. "If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender. We hope that Michelle will now get the treatment that she desperately needs.”

However, the Boston Globe reported that the surgery might not take place soon -- the state's Department of Corrections has not found a surgeon inside Massachusetts willing to perform the procedure.